IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 12^TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946 WP(CRL.) NO. 204 OF 2023 PETITIONER:

XXXXX XXXXX XXXXX BY ADV P.V.JEEVESH RESPONDENTS:

1 THE UNION OF INDIA THROUGH THE CABINET SECRETARY, CABINET SECRETARIAT, SOUTH BLOCK, RASHTRABHATHI BHAVAN, NEW DELHI, PIN - 110004

2 THE SECRETARY MINISTRY OF LAW AND JUSTICE, 4TH FLOOR, A- WING, RAJENDRA PRASAD ROAD, SHASTRI BHAVAN, NEW DELHI, PIN - 110001

3 THE SECRETARY MINISTRY OF HOME AFFAIRS, SOUTH BLOCK, RASHTRABHATHI BHAVAN, NEW DELHI, PIN - 110004

4 THE CENTRAL BUREAU OF INVESTIGATION

6TH FLOOR, LODHI ROAD, PLOT NO. 5-B, JAWAHARLAL NEHRU STADIUM MARG, CGO COMPLEX, NEW DELHI, PIN – 110003 REPRESENTED THROUGH ITS DIRECTOR, 5 THE CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY THE SUPERINTENDENT OF POLICE, CBI, X7JV+755, CBI ROAD, KATHRIKADAVU, KALOOR, KOCHI, KERALA, PIN - 682017

6 STATE OF KERALA REPRESENTED THROUGH THE CHIEF SECRETARY, GOVT.SECRETARIAT, THIRUVANTHAPURAM, PIN – 695001

7 THE LAW SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN - 695001

8 THE STATE POLICE CHIEF VAZHUTHAKADU, THIRUVANANTHAPURAM, KERALA, PIN - 695010 BY ADVS.

SRI.SREELAL N.WARRIAR, SC, CBI – R4 & R5 SRI.GRASHIOUS KURIAKOSE, ADGP – R6, R7 & R8 SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 12.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CR

JUDGMENT

Dated this the 12^th day of June, 2024 This Writ Petition (Criminal) has been filed under Article

226 of the Constitution of India and the prayers are as under:

“1. Issue a writ of mandamus or any other writ directing the 1^st, 2^nd, 3^rd and 5^th respondents to take decisions on exhibits P2, P3, P4 and P6 representations, seeking appointment of the public prosecutor, in a time-bound manner.

2. Call for all the records lead to exhibit P6, issue a writ of certiorari, and quash the same.

3. Issue an appropriate writ to the respondents 1 to 7 to withdraw exhibit P7 order of appointment, published in Gazette notification, dated 2/11/2022.

4. To issue any other appropriate writ, order or direction as this Hon'ble Court may deem fit in the appropriate stage.”

2. Heard the learned counsel for the petitioner, the learned Additional Director General of Prosecution and the learned Senior counsel appearing for the Central Bureau of Investigation (CBI).

3. It is submitted by the learned Senior counsel for the CBI that, as per Sections 2 and 3 of the Delhi Special Police Establishment Act, 1946, CBI was entrusted with investigation of this crime and the investigation started and final report filed arraying accused Nos.1 to 4. Thereafter, as directed by the court, further investigation has been going on to find out involvement of any other persons. According to the learned Senior counsel for the CBI, the victim or the representatives of the victim have no right to seek appointment of a Special Public Prosecutor and the same is absolutely a power vested with the Central Government or the State Government as the case may be. It is also submitted that since the investigation is now at the helm of CBI, Central Government alone has the power to appoint a Special Public Prosecutor in this matter. It is also submitted that the victim's right in the matter of appointment of a lawyer of his choice is subject to proviso to Section 24(8) of Cr.P.C. He has highlighted the decision of this Court in Jigesh P. and Another v. State of Kerala and Another, reported in 2013 (1) KHC 601] with reference to paragraph No.23 and the same reads as under:

“After the conclusion of the arguments, the learned counsel for the petitioner sought to cite one more decision, as reported in Centre for PIL and Another Vs. Union of India (UOI) and Another, 2011 KHC 4206 : 2011 (4) SCC 1 : 2011 (1) KHC SN 45 : 2011 (1) KLT 973 : ILR 2011 (1) Ker. 1001 : AIR 2011 SC 1267. That was a case with regard to the appointment of the Central Vigilance Commission under